What is Happening with EPA’s Definition of Waters of The United States

The definition of "waters of the United States" currently applicable is the definition promulgated in 1986/1988, implemented consistent with subsequent Supreme Court decisions and guidance documents. The 2015 revised regulatory definition of "waters of the United States" has been stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit. In response to this stay, EPA and the Department of the Army resumed nationwide use of the agencies’ prior regulations defining the term “waters of the United States.”

On February 28, 2017, the President of the United States issued an Executive Order directing EPA and the Department of the Army to review and rescind or revise the 2015 Rule. The agencies are in the process of reviewing the 2015 Rule and considering a revised definition of "waters of the United States" consistent with the Executive Order.

On January 22, 2018, the Supreme Court held that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule. On January 31, 2018, the agencies signed a final rule adding an applicability date to the 2015 Rule. With this final rule, the agencies intend to maintain the legal status quo of pre-2015 implementation, thus providing continuity and certainty for regulated entities, states and tribes, and the public while the agencies continue to consider possible revisions to the 2015 Rule.

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